The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. This civil rights action is proceeding on plaintiff's November 28, 2011 third amended complaint ("TAC"). On February 2, 2012, defendants Jubb and Whitted filed a motion to dismiss on the grounds that the TAC fails to state a cognizable deliberate indifference claim under the Eighth Amendment. Plaintiff has not filed an opposition, but seeks an extension of time to file an opposition, and requests appointment of counsel. For the reasons set forth below, the court denies the motions for extension of time and motions for appointment of counsel, and recommends that defendants' motion to dismiss be denied. Moreover, based on plaintiff's present medical condition, the court recommends that this action be stayed for a period of four months.
II. Plaintiff's Third Amended Complaint
Plaintiff's TAC names two defendants, Correctional Officer Whitted,
Correctional Counselor Jubb. Shortly after plaintiff was transferred
to California State Prison, Sacramento ("CSP-SAC") in April of 2007,
he was assigned to the Enhanced Outpatient Program ("EOP")*fn1
by Dr. Moghaddas, a psychiatrist. (Dkt. No. 59 at 4.)
Plaintiff alleges that the EOP "is reserved for the more severe cases
of mental illness and requires almost constant supervision. Daily
mental health groups and an interview with a mental health clinician
(once weekly) are required." (Id.) Plaintiff alleges defendants
informed plaintiff that "these doctors don't run shit! We run this
[EOP] program! And if we want you out, you're out of here!" (Dkt. No.
59 at 5.) Plaintiff alleges his level of care was reduced from EOP to
CCMS at the request of corrections staff. (Dkt. No. 59 at 6.)
Plaintiff contends he was unable to attend his mental health groups on
several occasions, one of which extended for a two week period. (Dkt.
No. 59 at 5.) Plaintiff contends that he was denied his rights under
the Eighth and Fourteenth Amendments to be free from cruel and unusual
punishment when defendants conspired together to have plaintiff
removed from the mental health program which ultimately resulted in
plaintiff attempting suicide. (Dkt. No. 59 at 3.)
III. Legal Standards - Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
"When ruling on a motion to dismiss, [the court] accept[s] all factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Moreover, where a plaintiff appears without counsel in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
A. Eighth Amendment Claim
Defendants argue that plaintiff fails to allege any facts demonstrating that defendants were aware of any excessive risk to plaintiff, or that they purposely denied, delayed, or prevented plaintiff's treatment, or personally caused plaintiff any harm.
i. Eighth Amendment Standards
Plaintiff's claim involves his mental health care and therefore falls within the purview of the Eighth Amendment.*fn2 In order to state a claim for relief under the Eighth Amendment for inadequate prison mental health or medical care, plaintiff must allege "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A medical need is serious if "the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Deliberate indifference is proved by evidence that a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence is insufficient for Eighth Amendment liability. Frost v. Agnos, 152 F.3d 1124, 1128 (1998).
Whether a defendant had requisite knowledge of a substantial risk of harm is a question of fact, and a fact finder may conclude that a defendant knew of a substantial risk based on the fact that the risk was obvious. Farmer, 511 U.S. at 842. While the obviousness of the risk is not conclusive, a defendant cannot escape liability if the evidence shows that the defendant merely refused to verify underlying facts or declined to confirm inferences that he strongly suspected to be true. Id. "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted). Deliberate indifference may be shown by the way in which prison officials provide medical care, Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988), or "may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm." Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003). Deliberate indifference in the medical context may also be shown by a purposeful act or ...